Installment 64B. State Bar tries to apply discovery procedure to trial testimony (Third in Philip E. Kay Series)
Count on the State Bar to do everything possible and some things impossible to take a default. In my case, Deputy Trial Counsel Melanie J. Lawrence failed twice before resorting to villainy, with help from both the Hearing and Review Departments, to get a terminating sanction. The Hearing Department defaulted Philip Kay when he refused to retake the stand after a week's misruling on his objections.
Kay argued that Rules of Procedure of the State Bar, rule 187, provided the State Bar's only remedy: referring the case to the superior court for contempt proceedings. The Bar Court held that it could use rule-186 procedures, which allow imposing terminating sanctions against discovery abuse. (See http://tinyurl.com/nax68j at p. 45, for both rules.) Rule 186 applies to discovery and allows application of the gamut of procedural sanctions, including termination. Rule 187 applies to "witnesses" and allows referral of nonappearing or uncooperative witnesses to superior court for contempt proceedings. Since rule 187 deals with witnesses, it covers both discovery and trial. If, as the Hearing Department contends, rule 186, despite saying otherwise, applies not only to discovery but also to trial, supporting that interpretation requires explaining why two separate rules exist to redress the same transgressions. On the Hearing Department's interpretation rule 186 and 187 collapse with the addition of contempt proceedings to the misnamed discovery sanctions in rule 186.
This uniquely broad concept of "discovery," that includes testimony at trial, is at odds with rule 186 itself. Rule 186, which authorizes using the Civil Discovery Act for discovery in Bar cases, incorporates the Civil Discovery Act into the Rules of Procedure of the State Bar, but rule 186 doesn't otherwise extend the Discovery Act's scope; the rule only limits its application in State Bar cases, prohibiting arrest and placing conditions on case dismissal. When the State Bar expands the scope of rule 186 to include trial, it goes beyond the underpinning Discovery Act. If section 186 applies to refusals to testify at trial, then the superior court using the Discovery Act, which rule 186 applies to Bar cases, could invoke the Act's sanction provisions to handle refusals to testify in a civil case. The State Bar argues respondent's refusal to testify justifies imposing discovery sanctions because the refusal thwarts the Bar's ability to prove its case in the same way as respondent's refusal to participate in discovery. The State Bar and the Bar Court should inquire why under the Rules of Civil Procedure the superior court couldn't invoke the Discovery Act to default a defendant who refuses to testify in a civil case.
Why then the policy distinction between refusal to testify at deposition and trial, only the first engaging the Discovery Act? During discovery either party's refusal to cooperate prevents the opposed party from building a case, but at trial the parties' positions are no longer analogous. If the plaintiff or petitioner takes the case to trial, that party presumably has sufficient evidence to prove the case. (See Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 714 [public policy disapproves of relieving plaintiff from meeting his burden of proof by defaulting defendant at trial].) The State Bar's need for Kay's extended trial testimony demonstrates the State Bar knowingly took the case against Kay to trial lacking the wherewithal to prove it.